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The European Commission wants companies that violate European Union antitrust rules to face more private claims for damages from rivals and customers, and is even mulling the introduction of “double damages” against members of a cartel.
The plan to support private antitrust enforcement through a variety of measures is contained in a green paper published by the EU’s top antitrust regulator on Tuesday.
It gives the strongest indication yet that the Commission plans to copy aspects of the US antitrust regime, which relies heavily on private litigation.
A move towards more private actions in Europe would be highly lucrative for law firms that specialise in competition law, as well as for companies that launch a successful damages claim.
Neelie Kroes, the EU competition commissioner, said in a statement: “Businesses and individuals who suffer losses because of illegal activities such as cartels have a right to compensation. Currently, this right is all too often theoretical because of obstacles to exercising this right in practice.”
The Commission paper suggests measures to reduce those obstacles, such as lowering the burden of proof for claimants and giving them access to documents obtained by competition authorities. Brussels also says it is keen to support “collective actions” from “consumers and purchasers with small claims”.
Most controversially, the paper also suggests changes to how damages are calculated. Among four options, it proposes “double damages” for cartel members to be awarded either “automatically, conditionally or at the discretion of the court”.
This would allow claimants to receive twice the losses they have suffered, and echoes the treble damages awards in the US.
The Commission will decide on further steps after a consultation period. Early responses from business organisations and lawyers were, however, mixed.
Antoine Winckler, a Brussels-based partner at law firm Cleary Gottlieb, said: “The Commission must be careful that it does not allow the kind of legal blackmailing that we often see in the US. The more extreme options such as double damages or full discovery of documents without court scrutiny would be a dangerous path to follow.”
Erik Berggren, a competition law specialist at Unice, the pan-European business organisation, said: “In principle we welcome all steps that make life more difficult for cartels. But we would be worried about any move that undermines the current leniency regime or that encourages frivolous court cases.”
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